Reproductive attorney at Melissa Brisman, Esq and owner of Reproductive Possibiities in New Jersey

Strategies For Getting Custody of Your Embryos

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While it's a safe bet that it won't be the most romantic activity pursued, couples may want to think about their cyropreserved (frozen) embryos, to be sure that they're on "the same page" and that their intentions for future use and disposition have been addressed in a written and signed document before a dispute or a divorce arises.

It's hard enough for divorcing or separating couples to reach an agreement over the custody of children born to the marriage or relationship. Imagine the difficulty in determining the custody of potential children as a result of embryos, created from the couple’s egg and sperm. In the absence of a document or, due to what one spouse (as used in this article, the words, couple and spouse , wife or husband also includes those individuals in a committed relationship, but not married) deems a compelling reason to void an existing document regarding disposition, couples have had to resort to the legal system to consider the distribution and use of their cryopreserved embryos.

Courts in the United States have had no choice but to confront the competing interests of spouses, who during happier times, created these embryos. The judicial system is able to rely on standards and guidelines to establish who gets the house, or the art collection, or percentage of the investment account. There are even guidelines for determining parenting time schedules for the kids, but embryos are considered neither children nor property. They are afforded special respect because of their potential to become human life. Embryos hold a distinct and unique status in the law.

Typically, fertility clinics require couples seeking cryopreservation services to consider future disposition of the embryos under a variety of circumstances, including death, separation and divorce. The clinics request that the couple complete and sign an agreement or consent form specifying instructions for future disposition of their cryopreserved embryos.

Legal precedent over the disposition of cyropreserved embryos is evolving ever so slowly, yet certain judicial tendencies and analyses have emerged. If there is an agreement in place regarding disposition, and a dispute arises, a court will look to the terms of the agreement to resolve the conflict, provided that enforcement of the agreement does not result in procreation over one of the spouse’s wishes. In the absence of an agreement, a court will look to a spouse’s right to privacy, and the spouse seeking to avoid future reproductive use of the embryos is likely to prevail.

Without question, the judicial system is being asked to resolve very difficult and intimate conflicts, and has been upholding the intentions and terms set forth in agreements, as long as parentage is not forced, as to do so would be against public policy. Couples seeking to avoid judicial interference, which often ends with one spouse’s unhappiness or disappointment with the outcome, are best to discuss their intentions with one another, before emotions rule and other relationship issues cause them to lose perspective.

What if there is no such document? What if there was a signed document, but circumstances have changed, or there has been a change of heart? What if the couple did plan in advance, yet a separation or divorce is now a likely possibility?

No one wants a protracted legal dispute. The end of a relationship is painful and can be costly. Decisions made with emotion and irrational thinking can create unwanted consequences for both spouses. This article aims to provide practical tips regarding the use of remaining cryopreserved embryos when a relationship ends.

Scenerio One: Husband Doesn't Want To Legally Be A Father

Let's examine the most common situation. A divorcing couple, in their early forties possessing cryopreserved embryos created when the wife was 35 years old. The remaining cyropreserved embryos are “five day embryos” that have been PGS tested and each has a great chance at achieving a pregnancy. The wife has entered premature menopause and can no longer produce eggs. She would like the opportunity to become a genetic parent and the husband is willing to help her achieve this, but does not want to assume any rights or responsibilities toward any child she births. Since the embryos were created during the marriage, the husband will be considered a legal father without the use of one or more of the following creative legal techniques.

First, create a contract whereby the husband transfers full title of the embryos to the wife, who then assumes the sole cost for all storage and fees related to the cryopreservation of the embryos. This contract may not be enforceable under the law of many states, but does serve to illustrate and memorialize the understanding and intentions of the couple.

Additionally, it is recommended that the couple include specific language in their property settlement agreement or divorce decree that states, “The embryos are the property of and belong solely to the wife, who shall have the ability to make all decisions regarding future disposition of the embryos including transfer to her uterus or that of a gestational carrier. Any child produced from these embryos will be the sole child of the intended mother (legally); and if the embryos are not used for reproductive purposes by the wife, they will be destroyed, (other possibilities: or donated to science or medicine for research purposes or donated to another couple).” Also to be included is language clearly stating that any potential rights the husband may have had are irrevocably terminated and that he will have no emotional or financial responsibilities towards any child born from the embryos.

One may ask if this is enough to protect the competing interests of both the husband and wife? Perhaps, but best to have the couple agree (and include in the property settlement or divorce decree) that if a child is born from the embryos, each agrees to participate in court proceedings and request that a court formally terminate, through a court order, any parental rights the husband may have to the child born from an embryo created during the marriage.

The contract, terms to be included in property settlement and/or divorce decree, as well as a court’s termination of parental rights will serve to protect, as well as accomplish, the couples’ joint desires.

Scenerio Two: Husband Refuses To Let Wife Use Embryos

Alternatively, what if the husband will not permit the wife to use the cryopreserved embryos?

Life is full of comprises. Currently, the law may be on the husband's side if he has decided he does not want to procreate. Most courts will not force him to procreate against his will. But, as noted above, embryos are in a category of their own. There may be offers of compromise extended in other areas that would allow the wife to achieve the goal of parenthood.

For example, she could offer and agree to only use the embryos for one completed pregnancy and birth. Perhaps there are outstanding monetary or property issues that could be resolved if she were granted the right to use the embryos for procreation. Maybe the wife offers to relinquish ownership of something the husband values in return for use of the embryos. Most divorces (and this includes those where custody of the embryos is in dispute) do not go to trial. More often any conflict is ultimately settled amongst the parties because in any divorce trial, there are no winners, except possibly the lawyers. It is always best for a couple to retain control of their conflict and resolve issues on their own, rather than turning the decision over to a judge, who knows very little about the parties, the marriage or the couple’s history together.

When counseling my clients, I often state the obvious. If you discovered that your spouse had relations with others during the marriage it is tempting to seek revenge. However, divorce and embryo custody disputes are different and revenge has no place in these disputes. Rather, both spouses should focus on moving forward in a positive direction. If your spouse is willing to donate his or her genetic material, you want to be able to tell your child about this person, and the positive qualities that initially attracted you. There must be some - you went through with the marriage! Be honest with yourself and on those areas where compromise is possible. Do not let anger fuel your conversations in determining who retains custody of the embryos.

More often, it is the wife who wants to retain custody and use of the embryos after a divorce or separation. Husbands need to seriously consider their response to such a request and any decision reached. If the wife has no other way to parent a genetic child, should she be denied that opportunity? Will it be difficult to accept the role of a sperm donor instead of that of a dad? I also stress that clients should not be afraid to ask for help from mental health professionals. Such experts can often isolate issues and assist in understanding clients’ needs and desires.

For example, is it important to have a genetic child or would the adoption process be a reasonable alternative? Letting go of your spouse and your dream of genetic parenthood at the same time are two huge emotional upheavals. A mental health professional may help in reaching an agreement or in letting go of the dream of parenting a genetic child.

Keep in mind, whatever the outcome, remaining cryopreserved embryos are limited in number and there is no guarantee that a pregnancy will occur, and parenthood achieved. All of this planning could be for naught and this issue must be explored as well. Embryos are not pawns in a divorce - they are potential life and the consequences should a child be born must be given careful thought.

Lawyers can help each spouse protect his/her legal interests while emotions are in turmoil. It is essential that your divorce lawyer (unless that lawyer is well versed in reproductive law) not be the sole source of legal guidance with respect to the issues presented here.

Finally, consider retaining the services of a mediator. Mediators can take on a less adversarial role and helpful when used in conjunction with mental health professionals to construct creative solutions to the consequences of creating life after the marriage has ended. May your embryos divide peacefully.